Citation Nr: 0812820 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-05 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from March 1969 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2006, the veteran appeared in a videoconference hearing at the RO before the undersigned. Subsequently, the Board remanded for further development in September 2007. FINDING OF FACT Based on puretone audiometry and speech discrimination data obtained on examinations in 2005 and 2007, at most, the veteran had level I auditory acuity in the right ear and level II auditory acuity in the left ear. CONCLUSION OF LAW The schedular criteria for a compensable disability evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.2, 4.7, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Hearing loss is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85 (2007). Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). Exceptional patterns of hearing loss, which are not for application in this case, are rated under 38 C.F.R. § 4.86 (2007). In the present case, the record shows that the veteran underwent a VA audiometric examination in January 2005. Testing revealed puretone thresholds of 40, 40, 60, and 65 decibels in the veteran's right ear and 40, 55, 70, and 75 decibels in his left ear at 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. (The average of these thresholds is 51 for the right ear and 60 for the left ear.) Additionally, he had speech discrimination scores of 96 percent in the right ear and 94 percent in the left ear. Under 38 C.F.R. §§ 4.85, 4.86(b), and Table VI, these results correspond to level I acuity in the right ear and level II acuity in the left ear; which, in turn, warrants no more than a zero percent (noncompensable) rating under Table VII. Following his contentions during his hearing before the undersigned in 2006 that his hearing had worsened since his 2005 examination, the veteran underwent another VA audiometric examination in October 2007. Testing at that time revealed puretone thresholds of 35, 35, 55, and 60 decibels in his right ear, and 40, 50, 65, and 65 decibels in his left ear at 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. (The average of these thresholds is 46 for the right ear and 55 for the left ear.) Additionally, he had speech discrimination scores of 94 percent bilaterally. Under 38 C.F.R. §§ 4.85, 4.86(b), and Table VI, these results correspond to level I acuity bilaterally; which, in turn, warrants no more than a zero percent (noncompensable) rating under Table VII. In light of the foregoing, it is the Board's conclusion that the preponderance of the evidence is against the veteran's claim for an increased (compensable) rating for his bilateral hearing loss. The audiometric examinations conducted during the appeal period clearly show that his hearing loss is noncompensable. Simply put, there is no basis for the assignment of a higher schedular evaluation, to include additional "staged ratings" for any portion of the claim's pendency. See, e.g., Hart v. Mansfield, 21 Vet. App. 505 (2007). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2007). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Board has considered whether the veteran's hearing loss claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The record does not show that he has been hospitalized for problems with hearing loss, and there is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. Duty to Assist and Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, a letter sent to the appellant on December 8, 2004, prior to the initial AOJ decision in this matter, fully addressed a number of the notice elements. The letter informed the appellant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. It also provide examples of the types of medical and lay evidence that the claimant may submit, including medical records, both VA and private; employment records; records from Federal agencies; and lay statements. A letter sent to the appellant on September 24, 2007, notified him that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. While there was a timing problem as to this notice, in that the letter was sent after the initial adjudication of the claim, the timing problem was cured by the readjudication of the claim in the December 2007 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board acknowledges that the VCAA letters sent to the veteran in December 2004 and September 2007 do not satisfy all the requirements of Vazquez-Flores, creating a presumption of prejudice. Nonetheless, such presumption has been overcome. For the reasons discussed below, the error did not affect the essential fairness of the adjudication. The purpose of the notice was not frustrated. The veteran had actual knowledge that in order to substantiate his claim he must provide medical or lay evidence demonstrating the effect the worsening of his disability has on his employment and daily life. He provided a written statement dated August 8, 2005, wherein he stated, "I have to use hearing aids in my dailey [sic] activities." In his substantive appeal, dated February 15, 2006, he stated that "this disability affects my ability to earn a living in my chosen profession." During his hearing before the undersigned in 2006 he elaborated that he worked in sales as the owner of a used vehicle dealership and that one customer became irritated with him, calling him "deaf". As a result, the veteran testified, he wondered "how many people I have either irritated or not got the point across to or didn't ask enough questions", thereby losing a sale and negatively impacting his livelihood. The veteran also had actual knowledge of the specific decibel and speech discrimination results necessary for entitlement to a higher disability for bilateral hearing loss under Diagnostic Code 6100 as he had been provided with a statement of the case in January 2006 that provided, verbatim, the criteria for disability ratings under Diagnostic Code 6100. Given these facts, at the very least, a reasonable person could be expected to understand from the notice what was needed. The post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim further served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The veteran was provided an opportunity to set forth his or her contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded two VA medical examinations in 2005 and 2007 in connection with this claim. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs